Moore v. Perry

• Decision Date: 01 December 2006
• Docket Number: No. 5D05-1956.,5D05-1956.
• Citation: 944 So.2d 1115
• Parties: Wendy A. MOORE, Appellant, v. Dorothy M. PERRY, Appellee.
• Court: Florida District Court of Appeals

944 So.2d 1115

Wendy A. MOORE, Appellant, v. Dorothy M. PERRY, Appellee.

No. 5D05-1956.

District Court of Appeal of Florida, Fifth District.

December 1, 2006.

Rehearing Denied January 5, 2007.

Jessica J. Recksiedler of Thompson & Associates, P.A., Maitland, and Elizabeth

C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellant.

R. David Ayers, Jr., of Ayers & Ayers, Winter Park, for Appellee.

MONACO, J.

This appeal raises an issue concerning the propriety of a grant of an additur in a personal injury action growing out of an automobile accident. Because we find that the trial court abused its discretion in granting the additur, we reverse.

The appellee, Dorothy Perry, filed a personal injury action against the appellant, Wendy A. Moore, as a result of an automobile accident caused when Ms. Moore's vehicle rear-ended one driven by Ms. Perry. Ms. Perry sought damages for bodily injury, medical expenses, and loss of earnings, as well as, damages for the aggravation of a previously existing condition. Ms. Moore conceded liability, and the case proceeded to trial solely on the issue of damages. The jury found that Ms. Perry suffered no permanent injuries as a result of the accident, but awarded her $7,250 for past medical expenses, $8,000 for future medical expenses, and $2,300 for past lost earnings. It awarded her no damages for future lost earnings or lost earning capacity.

Ms. Perry filed a motion for additur pursuant to section 768.043, Florida Statutes (2005), pointing out that although she incurred $43,166.90 in medical bills, the jury only awarded $7,250 for that element of damages. She posited that although it might be proper for the jury not to award damages resulting from medical attention to a heart condition from which she had long suffered, there was still $10,582.99 in bills that she thought should have been compensated. She claimed, therefore, that the verdict was contrary to the manifest weight of the evidence and inadequate as a matter of law.¹

Eventually the trial court entered an order granting Ms. Perry's motion for additur in the amount of $10,582.99 or new trial. The order is conclusory in nature and does not state the reasons for the court's action. At the hearing on the motion, however, the trial judge stated that while the jury could "disagree" with the amount associated with Ms. Perry's heart condition, "there should have been no conflict" with respect to the remaining $17,832.99 in past medical expenses. Ms. Moore appeals.

There are two statutes that address the subject of additur and remittitur. The older statute, section 768.043, Florida Statutes (2005), was adopted in 1977, and addresses remittitur and additur with respect to cases arising out of the operation of motor vehicles. The more recent statute, section 768.74, Florida Statutes (2005), was adopted in 1986, and extended the capacity of a trial judge to order remittitur or additur in any case where the trier of fact determines that liability exists on the part of a defendant and renders a verdict awarding money damages to a plaintiff. The statutes are substantially similar. See Smith v. Dep't of Ins., 507 So.2d 1080, 1092 n. 10 (Fla.1987).

Section 768.043 provides generally that in cases arising out of the operation of a motor vehicle, when the trier of fact determines that liability exists on the part of a defendant and a verdict is rendered which awards money damages to a plaintiff, it is the responsibility of the court, upon proper motion, to review the amount of such award and determine if the amount is "clearly excessive or inadequate in light of the facts and circumstances" that were presented at trial. If the court finds that the amount awarded is clearly inadequate, it should order additur. If the party adversely affected does not agree to the additur, it must be granted a new trial on the issue of damages only.

In determining whether an award is clearly inadequate a trial court is required by section 768.043(2) to consider, among other things, whether the trier of fact "ignored the evidence" or "misconceived the merits of the case relating to the amounts of damages recoverable." In addition, the court must determine whether the trier of fact took improper elements of damages into account, or arrived at the amount of its award by speculation or conjecture, or awarded an amount that was not reasonably related to the quantum of damages proved.

In the present case we are not favored with findings by the trial judge as contemplated by the statute, but we do know from comments made in open court that the judge found that there should have been no conflict on the jury's part with respect to medical bills not associated with Ms. Moore's heart condition. On this basis the trial judge ordered the additur in question.

The standard of review of an order granting additur is abuse of discretion. See Republic Servs. of Florida, L.P. v. Poucher, 851 So.2d 866 (Fla. 1st DCA 2003). Simply put, a trial court has broad discretion in ruling on a motion for additur. See Terry Plumbing & Home Servs., Inc. v. Berry, 900 So.2d 581, 584 (Fla. 3d DCA 2004), review denied, 914 So.2d 952 (Fla.2005); Davis v. Caterpillar, Inc., 787 So.2d 894 (Fla. 3d DCA 2001), review dismissed, 817 So.2d 845 (Fla.2002); see also Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999). Regardless of whether relief is ordered in this connection because the verdict is either excessive or inadequate, or is simply contrary to the manifest weight of the evidence, an appellate court must employ the reasonableness test in determining whether the trial court abused its discretion. See Beauvais v. Edell, 760 So.2d 262, 270 (Fla. 4th DCA 2000), review denied, 780 So.2d 912 (Fla. 2001); see also Trujillo v. Uniroyal Tire Co., 753 So.2d 1256 (Fla.2000).

In the present case the medical testimony was in sharp conflict as to the effect, if any, of the accident on Ms. Perry. Dr. Smith, for example, who testified on behalf of Ms. Perry, opined that the accident may have caused a herniated disk causing neck and arm pain, but that Ms. Perry had a long-standing preexisting arthritic condition in the lower back. Dr. Wright, who was Dr. Smith's associate, and Dr. Gizaw, another of Ms. Perry's treating physicians, both noted that Ms. Perry had been afflicted by preexisting arthritic degeneration throughout her entire cervical and lumbar spine. Dr. Uricchio, a defense medical expert, gave testimony that was perhaps the most damaging to plaintiff's...